Did you try to analyze or address power disparities between the parties? How did power differentials effect the process?


Ernest Jones


 [Full Interview] [Topic Top]

Question:
I appreciate the effort. You mentioned something a few minutes ago about leveling the playing field and you can talk more generally now. You don't have to stick with the Olympic case. How did you handle situations or how did you level an unequal playing field?

Answer:
I don't necessarily view that as my role every time. There may be times when I don't consider that to be a significant factor but if I want to try and level it and I think that's something that a mediator should be doing in this particular case, then there's a number of ways you can do that. One of the ways you can do just that is you can communicate nonverbally your support for the person who is on the low end of the playing field. There are a number of little tricks you or things that you can do like the use of body language to send a message that will indicate something to someone. It creates the appearance that I'm on this person's side and I'm here to help them, so you're not just dealing with that guy now your dealing with maybe two.

Question:
For example, non-verbal?

Answer:
Oh, moving physically closer to the person, having eye contact with them but not with the other person. Not that I don't want to look at them, not that I'm afraid to look at them because they are not important enough to look at. Anytime you start doing these body language things, you have to know what the hell you're doing. You have to be able to do this, but you learn to do that. By using pitch and inflection, you know sort of like talking more calmly and rationally and an even tone to the person you're trying to help. More aggressive and louder with the person, you are trying not to help. You know, there are all kinds of things you can do by using body language, and even by using tonality and inflection and those kinds of things. Another thing you can do in terms of leveling the playing field is to do some caucusing. You have to be very careful here that you don't screw up the neutrality of the way you're doing this, but what you do is try and direct the person who hasn't made it up to the level of the field, try to get them thinking in terms of how they can improve their position. You might recommend that they read something or they do something, or that they check into something. You don't tell them to do it, you just say this is something you might want to think about. It's usually best to do that by throwing out something else also, here's another option that you might want to consider. So, you're not telling them here's one thing to consider, you're telling them, here's 2 or 3 things to consider, so that there's options on the table. But you use the caucus period to point that person in the direction that's going to help them. When you caucus with the other side you know you're doing something that's not the exact opposite but what you do is you try to get them to lighten up a little bit. Or you can let them know in a subtle or maybe not so subtle ways that you know what's going on, and as a mediator because you're neutral you may not be able to do anything about it directly but I want you to know that I know kind of thing. The playing field doesn't necessarily have to be completely level, it's just the system, the process works better when it's level, and generally speaking I feel better about what's going on when it's relatively level. When it's relatively level then if somebody hurts themselves in the process, it doesn't bother me as much because they were both about the same level, and if they screwed up, I can't do everything all the time, but it should be a level playing field.

Question:
So you said that when you see a large discrepancy in the power you feel the need to sort of level the field, as level as it can be, that's relatively speaking, but what are those specific things that you're looking for that tells you that this group is not on the same level?

Answer:
Well, I don't know what to say here, as reluctant as I might be to make assumptions, I think you can generally assume a community group that's not really associated with a national organization. They're working at a hindrance when they're dealing with officials who have tax dollars, and all the time in the world because that's their job. The officials have access to data, and very likely although not exclusively, but very likely they are better educated. They just gain common sense, it just kind of tells you that officials are in a better position than our community leaders. Now if you're talking about a NAACP even though that chapter might be unsophisticated. When you're coming out of rural Arkansas, you know, they're not that well educated, they just don't have the sophistication level, because they've never had the opportunity that the mayor, the chief of police and all these people have. But what they do have is their organization, so they can bring in the legal defense plan. Even though that young group there is unsophisticated and may not be at the same level, they have a support mechanism they can bring people that were not on their level of playing field, and bring them up to power.

Question:
So in those cases did you sit back and let the community group access their resources and work with the flow?

Answer:
I may be different than a lot of people, but here is how I view some of the stuff. I take a very clear view that if you're going to raise an issue, then you need to know what you're talking about. If all you have is a high school education and the mayor's got a law degree, that doesn't necessarily make the playing field uneven. But, if you're a community organization or a community group, if you're going to raise an issue then you better have done your homework. My job as a mediator is not to do your homework, or do your work for you. My role is very simple, I'm just here to help you try and figure out what the answer is, I'm not going to come up with the answer, I'm just going to help you figure out how to do it. I expect if people want to raise an issue, then they're prepared to raise it and defend it. So, generally speaking I don't feel a great need to level the playing field. When I feel the need to level the playing field is when clearly I'll just stick with the example of obsidian community organizations. Clearly the city is acting in appropriate ways, that's not my job, my job is not to let that guide me because that takes me out of my usual stance, but I'm not stupid, I can see the writing on the piece of paper.

Question:
QUESTION UNKNOWN

Answer:
Because I know that that's happened and I want to maintain my neutrality. How do I do that? Well, the way I do that is by very indirectly coming to assistance of the community group to bring them up to where the playing field is level. I see that as a role of a mediator. I think we should have as level a playing field as you can get. Everybody should be starting at about the same place. So when I see that that needs to take place and I think that's a legitimate function. I mean it's an "iffy" kind of thing, cause you're still trying to maintain that neutrality and see if everybody's helping somebody else. There are times when it's just got to be done.




Julian Klugman


 [Full Interview] [Topic Top]

Question:
Now this conversation sounds to me very much as if you are manipulating the process. You said over and over again, "I'm not neutral." Are you impartial?

Answer:
Yes. I'm not going to let anybody yell at anybody, I'm not going to let anybody get out of line, I'm not going to let anybody intimidate anyone else. I'm there to help them solve their problems.

Question:
What if they develop an agreement which you consider to be unfair?

Answer:
Tough.

Question:
Tough to you, or tough to them?

Answer:
Tough to me. They're not there to do what I want them to do. I'm there to help them, I work for them. They don't work for me. But there are times when mediation is going to fall apart and there are times when you don't mediate. That's what I was talking about regarding ethics. Nobody talks about that anymore. Sometimes mediation doesn't make sense. Sometimes it shouldn't be done.

Question:
When is that?

Answer:
With table mediation, not problem solving, but table mediation, you need some degree of equality between the sides. That didn't exist in this situation, because you had a strong group on one side and a weak group on the other side. When that happens, you're not going to come out with an agreement. But I was the leveler. The Indian group was not equal to the other group, but I made it happen.

Question:
You made what happen, you equalized the power?

Answer:
Yeah, I equalized it.

Question:
Ok, that's another question that I want to get to.

Answer:
So the two groups have to be fairly equal. And both groups have to be ready. Secondly, the groups have to be in a position so they can make decisions. It can't be "we'll make a decision, and I'll go back, and the city council will have to vote on it," and that kind of stuff. And that's where it gets tricky. You can't get the whole city council there, so what you have to do is get an informal agreement. You have to get the mayor or the head of the city council, the person who can really swing that city council. It has to be pretty much an informal agreement that the city council is going to go with. You have to have the power of the people at the table. Then you have to have a commitment that they will participate. I got a commitment that we would go for three full days. That's what I said we were going to do. Because I don't believe in stop and go mediation in that kind of situation. We'd never get to it. So the police chief, the mayor, the Indians, everybody committed three full days, including me.

Question:
And the city council committed that whatever the group came up with, they'd go with it?

Answer:
It wasn't the city council, it was the head of the law enforcement agencies. The sheriff didn't have to go to county court, he could speak for himself. The police chief really runs his own department. The city council wasn't a factor here. It was how the police department was operating.

Question:
In other cases if there is a decision made, and they operate according to votes, do you get them to agree to abide by the decision, whatever it is?

Answer:
Well, they can't do that legally, but that's why I said informally, and that makes it trickier. But you've got the police chief there and you figure the police chief is talking to the city council. They're being kept informed as to what is going on. If, during the mediation, for example, money issues came up, like who pays for this full time Indian person? The sheriff couldn't commit the county. The county had to vote for the money, but if there was agreement, they would go to the county and ask for the money. There was informal agreement that the county was going to provide the money. Formally could the county provide the money? No. But informally there was an agreement.

Question:
Let me go back to this issue of having the parties in equal power.

Answer:
The other side is the community. In the community you have to have people at the table who really represent the community. Not the whole community, but represent somebody. So you have to have legitimate people there at the table.

Question:
And how do you determine who's legitimate?

Answer:
They determine that.

Question:
What if the people at the table are not the right people?

Answer:
They have to be the people in power. They are the people who are complaining. But they have to represent something. It can't be individual cases of malcontents. The woman at the table in the wheelchair was the actual chief of the Indian tribe. She was elected, so automatically she's at the table. Now does she represent every single Indian? Hell no. The Indians are split ten different ways, that's one of the huge problems in the Indian community, they are so badly split.

Question:
So do you need to get a representative of each of those factions at the table?

Answer:
No.

Question:
What do you do if one of the break-off factions doesn't want to go along with the agreement?

Answer:
That happens, I've had that happen, they don't go along.

Question:
Ok, and you don't try to get them in the fold?

Answer:
Yeah, you do, but if they won't come in, they won't come in. That's very common, when there's money involved in the settlement, you have a lot of splits. It's a poor community. The poor community had more splits in it because people are fighting over money.

Question:
Ok, let's go back to the idea that you need people of equal power at the table. But in race situations, minority situations, you rarely have people of equal power.

Answer:
That's correct, that's why we were so important. That's why us being the U.S. Justice Department was very important. Once people came to the table, we make the situation legitimate.

Question:
And what effect did that have on what's going on?

Answer:
It makes everything official. We're the federal government. It brings the ultimate threat of a civil rights complaint.

Question:
So in that regard, it helped you?

Answer:
Sure. Remember now, we're set up as an alternative to legal action. When we get an agreement, with the court, it's a consent decree. You want to get into thousands of hours of paying lawyers? You want to get into a civil rights complaint that's going to go on for years, particularly if there are things wrong?

Question:
Were you explicit about making that threat?

Answer:
I don't threaten people. Do I remind people of this? I might, but not in public. Of course, I remind people. It was difficult to get people to the table.

Question:
So what else do you do to empower the low power group?

Answer:
You help them. You explain the process. Also, you're a reality agent. You get down to specifics. You get down to what is really wrong, what really is going on. That's where you're emphatic. I understood what was going on, and I told them I understood that the guys are getting hurt and so on. Then we start getting into a discussion of how do you handle a young guy. That's where this alcohol control official came in handy. I brought him in. Then I brought this young woman in who was the U.S. Attorney in the form of this Indian woman. That made a difference. I'm learning, I'm trying to figure out what we can do. We wanted to keep it going. We set up a complaint process. The bottom line is, what are you going to settle for? I wouldn't let extraneous things come in. The lawyer for the sheriff said, "Well, is this a legal process?" I said, "Yes and we're starting."




Werner Petterson


 [Full Interview] [Topic Top]

Question:
When you perceived that there might be a significant power imbalance between the parties in this case, how did you intervene?

Answer:
In this particular case, there really wasn't an imbalance. In cases where there are power imbalances, the person(s) in power tries to use the mediation to their advantage and it usually becomes very clear. The other side responds or is hostile and they feel like they are being pushed to the point by somebody who has a little more power. Usually, I try to talk with the person who has the power, to look at where their position is taking them. I say, "if you hold that position and exert your power and not show any flexibility then this thing is going to continue to get worse and we aren't going to find a solution." Sometimes it was a possibility that if we couldn't work something out then there was going to be lawsuit or some sort of boycott or a threat of violence. The person that is in the position of power reflects on where that's going to go. That's been my general response. I talk to the party with the power to point out this will continue to go in the direction they want to go and the downside of that and what are the possibilities of going some other direction. Not to say they ought to accept what the other side is saying, but at least get them off of just being partners in that situation. The other side of the equation is that people have different kinds of power, but for the side that has the least power sometimes being in that situation they make demands that are unrealistic. The other side has such a firm position that you are so firm on going to say out of doing this one stands about as much chance as an ice cube in hell. I ask if we can think of it another way, or if we can talk about some of these other issues. I think when there is a real power imbalance the mediator needs to bring some reality to the situation for both sides. They may not be seeing the best solutions.




Wallace Warfield


 [Full Interview] [Topic Top]

Question:
So how do you deal with the notion that -- again, this is another thing taken out of the literature -- that in order to be successful in mediation, the parties have to be of relatively equal power. So what’s commonly done is mediators will work to empower the low-power group, and I’m hearing you say that you do that to a degree, but that can then cause problems with the other side.

Answer:
Well, it happens in the very beginning. Typically the way that happens in CRS and most other kinds of mediation where there’s this huge dis-equilibrium of power – and the same thing can happen in organizations, for example – is that you do your power-balancing in the beginning of the process. Let’s sort of walk through a typical process: you come into a community, you meet with the leadership in the community, then you meet with the so-called establishment side, the local officials, the business people, and the first thing they say to you is, "So who have you met with on the community side?” and so you say, "Well, I’ve met with so and so." They say, "Ah. A, B, and C is fine, but D and E.....those guys or those people -- known troublemakers, can’t have them involved in the process.” So right from the very beginning, there’s an attempt, even before you’ve gotten into the formal sessions, to discredit people who, in fact, could be the people who could redress the balance of power in a setting, because they know they don’t want those people there. They don’t want the balance of power. So I think the job of the conciliator or the intervener, just to think of a more neutral term, speaking of neutrality, is to convince the powers-that-be that if they really want this to be a successful outcome, without defining what success is at this point -- because you don’t want to do that -- then they need to be here. "You need to allow us to do our work, to make sure that the discussions stay on an even keel. We can’t promise you that there won’t be some explosions from time to time, but you know, you’re going to have to be prepared to deal with some of this if it happens." So, there was that aspect of it, right from the very beginning. And then, running throughout most interventions, you could say that at the beginning, but there would be these kinds of recidivist fall-backs to the same kind of attempt to slowly disempower people that they didn’t want to be at the table. Either in this particular forum, or others. Something that we don’t give enough credit to in general, is that parties in disputes or conflicts are pretty sophisticated. We think they look only at these particular issues, but in many cases, people in communities are thinking about, "What are the implications of this as an outcome for future relationships?” And read into that, "future power relationships.” So if they’re successful in this issue, we know that coming up next year there’ll be a bond issue about such-and-such. So they’re looking way down the line, in some cases much further than the mediator is. They’re looking at externalities that the mediator is not even seeing. So I think that the mediator then has to be able to constantly work to be able to do that. There are several techniques that the mediator, or the intervener, has with which to empower the low-power party. I think that the idea that CRS came in – if not explicitly, then certainly implicitly – to redress the power was certainly known by everyone. But the very fact that parties were being brought to the table, metaphorically and literally, was in fact a kind of equalizing of the power. Jim Laue had an expression, as a tap-dance around this issue of advocacy, by saying that he was "an advocate for the process”, remember that? Well, if you strip away the veneer, you see what he’s really saying. He’s an advocate for social change. If the process is going to bring about social change, then there’s the connection.....

Question:
How did this play with the white communities? Did it generally work?

Answer:
It depended. It really depended. Then again, in the social science field there’s a tendency to sort of demonize white communities. You know, "They’re all one thing or the other”. Well, the truth of the matter is that so-called white communities are fairly diverse in and of themselves. So the fact that you have a white leadership in a community, probably Republican, is supposed to mean, in the popular conception, that these are people who adhere to all the kinds of things that are an anathema to your perspective. You know, they’re right-wing people, they’re conservatives, they’re against affirmative action, so you just name a litany of things and that’s where they are. Well, if you got into these communities, what you began to discover was that when people live their lives in these communities, they articulate a different kind of perspective. It becomes a matter of, "We have to get through this particular situation.” So in some instances, you find some white leadership adhering to that kind of popular line, but on the other hand, you also find whites who say, "You know, we know this change is coming. It’s going to be inevitable; we have face up to this. We may not like it, but our children are going to grow up in this town, and we need to find a way of dealing with it.” It didn’t necessarily mean that they were ready to give away the proverbial shop; it’s just that these realizations and recognitions were there, and a good intervener would find a way to capitalize on that.




Wallace Warfield


 [Full Interview] [Topic Top]

Question:
Interesting. So, let’s go back to the CRS arena now: There’s plenty of times where the white power structure is middle-class, and the minority community presumably isn’t. What do you do then, in terms of process?

Answer:
Well, it isn’t clear to me how that necessarily changes the process.

Question:
In terms of what model you use, you said that class really matters....

Answer:
Yeah, well I think that class matters from the standpoint of conceptualization of process. It may mean that you have to use some kind of a hybrid in a sense, or -- I talked about this a few moments ago, but this was a prison mediation I did many years ago in Monroe prison, which was, and still is, a medium-security prison right outside of Seattle. Conflict over minority inmates feeling that they weren’t getting their fair share of resources in comparison to white inmates who had done the same crime, and were serving the same kind of sentences. There were a couple of riots there. So, my recognition was that we were dealing with a very sophisticated warden -- white warden -- and his staff, who had been to the table in various kinds of fora and were used to the patterns of negotiation. And an inmate community, mainly inmates of color, who had not had that experience. So what I did was, I said to him, "We can’t go into mediation with this kind of imbalance. Just my few questions and meeting with the inmates’ side tells me that they know very little about negotiations, and I think if you’re really interested in this being successful, you’ll let me do at least a day of negotiations skills training with them first,” which is what I did. So one way that you can do this is to create a distinction in the process at the beginning, by being very transparent on what needs to be done, and with the white side say, "Look, if you’re concerned that I’m going to be involved in some sort of sedition-like sort of behavior, or that I’m going to be instructing them in terms of what to do, that’ll become clear enough in the actual process, and you can always end it if you don’t care for it.” So that’s one way of dealing with it, to sort of recognize the disparities and address them up-front, which is what I would prefer to do, rather than to simply go into it, then figure out once you’re into it how you’re going to redress the balance.

Question:
Okay. How much direction do you give to minority communities, or how much assistance would you give them in terms of identifying their issues, prioritizing their issues for them?

Answer:
In caucus, the risk is you get into more of an evaluative procedure with the minority side, comparatively less so with the white side. The risk is that the evaluation will become known in the joint sessions and then there you are, blown out of the water. Again, my experience – I don’t know what other CRS people have done, but my own experience then, and still is – is to be very transparent about this and say, in effect, to both sides, "Now I sense that there’s a need....” Particularly what happens is that there’s a frustration on the part of the establishment’s side in the process, and it allows you to say, "What I think is happening here is that the minority side doesn’t really have a good sense as to how to organize the issues. I think I need to spend some time with them to be able to do that. Would you let me do that?” So when you’re meeting with the minority side in caucuses, it’s much more than an evaluative procedure. I mean, think about this: "What are the consequences of taking this action now?” Now eventually, that gets evened-out, my sense is, by doing it jointly so as you get closer to the actual agreement. Then you’re sitting there with both sides and you’re doing much more of an evaluative procedure toward the end than you were in the beginning, because people trust you. I think that I have much more comfort -- by the way, it doesn’t matter if it’s mediation; I could be doing a problem-solving workshop -- as a facilitator starting out in a much more clearly-defined position of neutrality -- neutral in the sense of being neutral and non-evaluative, and then becoming increasingly so as trust is built up between the parties and as trust is built up with me. So by the time we get to the point of people getting ready to sign off on an agreement of some sort, you’re fully-prepared then to say, "Well first of all, let me tell you my own experience,” and I’ll go into some experience, and I’ll say, "Let me give you a perspective about this from another point of view.......you can do this, but here’s another possibility......here are some resources you can look at if you want to go beyond me, in a sense....”

Question:
But you wouldn’t do that up-front in caucus?

Answer:
I wouldn’t in the very beginning, because I think that the danger is, you’re taking over the negotiation for one side, and then when you come back into the joint session, that side is looking at you saying, "Well, your turn!” (Laughter)




Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Did you ever tell the administration or the authorities that you're going to be working with the minority group and then they thought that would make the minority group even more powerful, so maybe they'd better get you working with them too?

Answer:
Yeah, could be. They definitely don't want to be left out of the loop, nor do they want to be perceived as not being cooperative. And that's a plus. Again, they say they want to cooperate, they say they want things to be better. I'll take their word. Then the minority groups says, "They've been saying that for years, but they don't really mean it. I know they don't really mean it." "Well, I'm going to trust that they mean it. Let's see what happens. One of the biggest factors is, what could it hurt to try? It won't cost you anything, the government's paying me. You've tried and tried and tried. So the cost factor, what's it going to cost you if you do this. Give me a couple of months, you could still do anything you want after that. But is it worth one more try?" Again, most people say, "Yes, it's worth one more." On the other side, "Could it be better? Not that you're bad, not that you're the worst people in the whole world, not that you've done everything wrong, but could you at least see that the relationships between these two groups of people could be better?" "Sure they could be better." Okay, then let's see what we could do." So you're taking people at the pragmatic level. They have low expectations, but let's see if we can make things better. Again, I'm dancing them into a more intricate kind of process that has long term benefit.




Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
What about power being a factor? Do you have to provide some way where they can maintain power? We sometimes talk about the difference between 'power with' and 'power over.' Is there any way to have power with instead of power over?

Answer:
I would interchange that with what I just said about honor and put power in there. Before, the power, the only way they perceive themselves as having any influence is by 'power over.' You've got to create a new picture for them that they can buy into, and that's 'power with,' that still has honor and influence. If you try to diminish them and their influence, it won't work. So if you can reorient their paradigm to see that they have more influence inside the group and they can make a difference here. "You've had an incredible influence on this community. What you've done has made an incredible difference for these people, for the change in working relationships. Let's look at it a different way. You can still have influence. You're very important to this process." Many of them will see that and come along, if you'll help them create that new picture. That's one of the gifts of the third party. You don't have anything to win or lose, so they're not looking at you as a vested interest. Nobody else can play that role because everybody else is suspect. But yes, I think everybody has to have a position of honor and have some sense of personal empowerment.




Stephen Thom


 [Full Interview] [Topic Top]

Let me move to another question. Some people say that many social protests are a reflection of the inequitable allocation of resources in society, They suggest that when you intervene and try to move the protest activity towards settlement, you are addressing these underlying issues by throwing a bone to ease the pain a bit while the basic societal problems continue. Are you, in effect, undercutting the purpose of the protests when you bring parties to the table?

Answer:
I think there is a need for protests. It is important to get the attention and support of the public. I think protests serve that particular agenda. If you can get the attention and the sympathy of the general public, then it forces the institutions or whomever you are protesting against to recognize that it is not in their interest to withhold resources, or whatever the protest is about. Once that is leveraged and there is a willingness of the parties to sit down and discuss those particular issues, then I think there is a time to go to the table. Now, there is a risk there and I understand it. If the protest doesn't communicate and gain enough support then you don't have the leverage to demand and maybe get all of the resources you think you need. Sometimes you can cut a protest too short. In the same token sometimes you can belabor an issue by protesting and lose the support of the public. I think there is a fine line there that the organizers of a protest have to calculate. What is our objective? If we are only trying to get the support and leverage for the parties to meet, then let's get to that point and figure out what they want to accomplish.






Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Did you do anything else to deal with power disparities between groups?

Answer:
This was something that I used to talk about with all the parties. The CRS mediator became the fulcrum on this power beam, and I may need to move toward one group or another to keep the balance. We used pre-mediation for coaching and guiding, so as to make it productive when we did get together. This way, we had some substance there and not just emotions. I don't ever want people to think I'm diminishing their emotions. Those are a significant part of it and they need to be shared. But, if you're going to create systemic change, you have to go beyond that. You need to determine where those emotions are coming from and what systems can be managed or changed in order to create positive emotions. I may need to move closer to one group or the other, but that's why I'm doing it. The only danger is if you don't let everybody know that you're doing it, then one group hears about it, and thinks that you're advocating or becoming aligned with that group. You have to be real careful that the group doesn't perceive you as an advocate, but that they know you're coaching and helping for the purpose of everybody. You're offering that same level of service wherever it's needed. In the mediation, it's the matter of using titles, agreeing that we won't use titles, or if we do, then everyone is addressed with a Mr. or Ms. We're not using Dr. and Chief. We don't say Chief Williams and then Joe. We're going to use Mr. Williams and Mr. Smith. That nuance says to Joe that the mediator is honoring him and around this table we're all Mr. or Ms. Either that, or we all use first names, which is the preference. There's some dance with that. If there's somebody that's a revered community person, we just couldn't call them anything but reverend or brother, so then you honor that and you don't violate the honor of the group. But at least there's some acknowledgment that we're on the same playing field. In the context of the discussions, we need to keep people safe. If one or the other starts taking somebody on, then you stop that. You say, "remember we're talking about how you feel." If you let one of them diminish or take the other one on, then the environment is not safe anymore. Once the group realizes that you are going to manage that, then they feel safe and they respond to it. That's power. If you let one party overpower the others, you can't have mediation. That technique was part of it. It was again a delicate balance because you as the mediator can't put anybody down either. And that's where the ground rules come in. I establish ground rules, like we diminish no one, everyone's opinion is respected, no name calling, no use of profanity. Then whatever those ground rules are, when someone violates that and starts cussing at Joe, I can say, "Susie, remember you agreed that you wouldn't use profanity, you agreed that you wouldn't call names, and I'm going to have to ask you to honor that." I'm not the bad person, or the parent. I'm the one that reminds them of what they've agreed to and it feels a whole lot different then if I'm going around and pointing fingers. If that doesn't work, then I caucus with them. If a caucus doesn't work, I ask the other party if they want to continue but I won't allow it to get out of hand. I think I've violated the confidence that people had that I was going to keep it safe. Police chiefs seem to be especially concerned about it. They don't want to come to some meeting and let people chew them up and my assurance to them is I'm not going to let that happen. People may vent their feelings or their frustrations and they need to do that, but it won't be personal. But if I violated that then I violated my trust. Those were the kinds of steps that I used to honor that. The most important thing is that they buy into some behavioral ground rules that I can call them back to.

Question:
Do you suggest these ground rules before you start or do you develop them with the parties?

Answer:
I develop them with the parties. "Diminish no one," was always one that I used for myself and for them. Generally they would come up with something similar, but if they didn't I would add that. I let them develop the ground rules. I would ask, "What's it going to take to make this successful?" Then I list what they have come up with. Every meeting, I bring them back and put them up in some fashion.






Bob Hughes


 [Full Interview] [Topic Top]

Did you perceive all the parties to be on the same level playing field, or did you find that there's one party that had significantly more power?

Answer:
There were different kinds of power. white public opinion would have been a factor in the background of the landowners, and I'm sure that the Native Americans, the tribal leaders, were very much aware of that. One of the things they were concerned about was what Congress would ultimately do.

Question:
The tribal leaders?

Answer:
Yes. Not in this particular case, but I think in Indian country, in general. Treaties can be changed by Congressional action. The courts can give definition to treaties and that sort of thing, I think the thing in the background that's rarely articulated is this fear of what Congress will do about, in this case, these kinds of treaty rights and private property rights. Therefore, white public opinion, once this is all out in the open arena, could generate a lot of feelings.

Question:
So does that threat influence the Native Americans to not push as hard?

Answer:
It would probably have some influence along those lines. It wouldn't be specific, but it's a restraining influence. I've never heard it put just this way, but that's my interpretation.




Bob Hughes


 [Full Interview] [Topic Top]

We talked yesterday a little bit about power disparity and I think you said that you wouldn't mediate unless there was some close equality of power. I was thinking at the time in the criminal justice cases where you have the police and a minority community, it seems to me that would be an instance where you have a very vast power difference, yet you still, I gather, mediated. How did you deal with that kind of power difference?

Answer:
Well, you've got several elements here. Publicity and public opinion are factors. Say the police did not deal fairly, there is always the possibility of publicity around their decisions that would make them look bad if they did this. That's outside the room of course. There are always potential pressure points that the minority community can use if they so chose that would make for potential build-up of their negotiating position, such as in the Portland case I mentioned. They were up against a very strong rigid position yet they were able to change that position. That kind of potential is always out there if it's resorted to and usually does not reflect well on say the institution that is involved.

Question:
Do you ever encourage the minority party to do that kind of power building, or do you kind of leave it up to them to decide when they need to do it?

Answer:
I would generally leave it up to them. In between disputes I may have comments to people as I might be discussing or critiquing a case. I might tell one community what happened in another one. These all convey suggestions, I would guess. I may not do it purposefully but I think that general kind of information of how the dynamics of one community are being followed are pertinent to all the communities. They should be aware of these kind of changes I think. I would tend to share it.




Efrain Martinez


 [Full Interview] [Topic Top]

Groups up to then were not part of the decision making process. They were not included. I remember once I was responding to a beating of a Mexican guy in Texas, back in the early 80's. We set up meetings with the mayor and the police chief before there was going to be a big march through downtown to the cemetery. The mayor asked one of the local leaders, "Why do you have to have this rally? You're going to give the city a bad name, with all the media out here." The guy answered, "We didn't give the city a bad name. It's your police officers who gave the city a bad name." The mayor asked, "Why don't you work through the system?" The guy said, "Well, let us in." If he wanted them to work through the system, then he had to let them into the system. That's where I guess a lot of minorities see themselves as not being part of the system. For whatever reason. But they need to be in where decisions are being made. In essence, a lot of our work is pretty much like that leveling the playing field. Bringing them to the table where they can discuss matters on a level plain. Through us, they can get to do that. Once they're there, they take up matters themselves.



Efrain Martinez


 [Full Interview] [Topic Top]

Were power disparities ever an issue?

Answer:
I think they're present a lot of the time. If it's a minority group that feels disempowered, a lot of times, they themselves will say, "We have no power here except the power of numbers, and we're putting ourselves out there." If nothing else they'll put their bodies out. Others in society may call a person with influence, they can call somebody to help them work things through, they can call a congress person, they can call a city official, they can call a city council member, and they speak on their behalf and the problem gets resolved. But sometimes minorities feel that they don't have those resources or those avenues, so they just put themselves out there. We give them access to those environments where decisions are being made or can be made. Access that they didn't have before. If that's empowerment, I don't know, but we're giving them access, they themselves can then negotiate to resolve the problem. For some reason they may have not been able to do this before.




Ozell Sutton


 [Full Interview] [Topic Top]

For example, after Martin was killed, Baird Rustin....do you know who I'm talking about? Baird Rustin came down to organize that peaceful march that Martin had come back to Memphis to do, but was killed before he could. Baird was a great master of demonstrations. He's the person who organized the march on Washington. He was a great tactician, so Baird Rustin came down and took charge of organizing the next march. When Baird walked the route of the march, he said, "Oh no, we can't march that way." Number one: They had a court order to deal with, because the city went into court and tried to get an injunction against him in another march. They didn't get the injunction, but they got a bunch of restrictions on the march. One is they could only use one half of the street; another one was that the march had to take place between ten and two; another one was the route of the march. When Baird had walked the route, he was that much of a tactician. Most folk would mark from here to here; he would walk it and see what the hindrances and encumbering things would be and he said, "Going that way, we have to pass two buildings in demolition and one building in construction. We don't want young people to be tempted to pick up rocks and bricks to throw. We don't even want to go that way, we want to go another way." But the court order was to go that way. And then the other was a problem too. Do you know how long it would take to process ten thousand people, marching four or five abreast? We couldn't even go downtown and get back within the four-hour span of the court order. So the court order needed to be changed. So then they turned to me as the mediator, and Baird said, "Mr. Sutton, somebody's got to go before the judge, and tell him what the encumbering things are as they relate to a peaceful march." Under usual circumstances, an attorney would go down and make that appeal, but that takes too long. The attorney would have to make a brief, and the judge would have to study the brief, and then come up with an answer. He said, "That would take three or four days, and we don't have that. Would you go down and just talk to the judge, man-to-man about this situation?" I agreed to do it, so the next morning, when the Justice Department agencies got together, as we did everyday, CRS, CRD (Civil Rights Division), U.S. Attorney, and F.B.I., all got together the next morning. I reported this to them. So the guy from the Civil Rights Division jumped up and said, "You can't do that!" I said, "What do you mean I can't do that?" He said, "The Justice Department can't be in the position of asking a judge to change his order." I said, "With the exception of the F.B.I., the rest of you are attorneys and I can understand your great fear of the judge. But a mediator does not have that kind of fear, at least this one does not, and I shall go." He said, "I'm the highest ranking member of the Department of Justice here, and I direct you not to go." I said, "You're getting things mixed up." He said, "What's that?" "You are the highest ranking person from the Civil Rights Division, I'm the highest ranking person from the Community Relations Service, and I promise you that the Community Relations Service would not tell the Civil Rights Division what to do, and the Civil Rights Division will not tell the Community Relations Service what to do. There are only two people telling me what to do and that's Roger Wilkins, Director of the agency, and the Attorney General himself. He said, "I shall call the attorney general." I said, "Call whoever you want to call." I left the meeting to go to meet with the judge, but on the way to meet with the judge, I called Roger. I said, "Roger" and he said, "Hey, Ozell, how's it going?" I said, "I say to you," and I'm always doing this, "you remember the scripture about how the lady said, I will go and see the king and if I perish, I perish?" I told Roger what I was about to do. I told him I was greatly upset at the Civil Rights Division, that he would probably hear about that, but that, "the only thing I need to know, is whether that disturbs you or not, Roger." Roger said, "Ozell, if you think that's what ought to be done, then you do that." That's the way Roger was. "You are a seasoned mediator, one of the best we have, so you go ahead and see the judge." I went to see the judge, and the judge received me, very politely, and I explained to him, I said, "Judge, marching four or five abreast, it would take more than five hours to process ten thousand people. Had you considered that?" He said, "The city does not want them to take the whole street." I said, "Judge, you know what that is. When the American Legion comes here, it takes the whole street. When the Shriners come here, they take the whole street. And they don't even get a permit. They just go out there and start marching. I used to be a commander of a protest group and when we came into town, we just went out there and start marching. We took the whole street and nobody said a word to us. This is selective law enforcement, which we cannot do in this situation. The city would not drive for three hours and they're going to need the whole street to do that, even for the city's sake they need the whole street." The judge agreed. Then I told him about the difficulty that they didn't want to march down that street, unlike it was in the other march. "Even the signs are not going to be on sticks; they're going to be on strings hanging on their necks, they're trying hard. We've got to help them." He agreed. He agreed to all that I asked him to do. When I came back and told Baird and the ministers and all the leadership, (they met every morning), that the route had been changed and that the judge had agreed, they were satisfied. I met with the Justice Department officials. This guy who was daring me to do something, he said, "You know, Ozell, you are a peculiar guy." I said, "There's nothing peculiar about me." I did that as a fun thing. He said, "You have a lot of audacity." I said, "I'm audacious. I'm more than audacious, I am bodacious." Bodacious is being brave and audacious. I've been out here a long time, and sometimes you have to take a risk, even with yourself. If the issue's big enough, you even risk your own self and your own career. I'm not out here playing, and what they said made sense to me. And I didn't have any reason to fear the judge. I'm just a laborer, I'm not a member of the court system. Judges are human beings, and I wanted to talk to the judge not in legal terms, but in practical terms.

Question:
It sounded like you took the interest of the parties.

Answer:
Yeah.

Question:
And the interest of the city, which is what a mediator would do?

Answer:
You mesh them. Even thought that wasn't what the city wanted done, as soon as I had done that and left the judge's office, I went over and met with the mayor and his chief of police and I said, "This is what it's going to be like. As negotiated by me. I would hope that it would meet with your understanding and your will, but this is the way it is. Everybody wants to know why they need a position like mine to go ahead and do something, and I did it." And the mayor looked up and said, "Well, Mr. Sutton, we have been accustomed to your moving on what you think ought to be done. Whether we like it or not, that's the way it is."




Will Reed


 [Full Interview] [Topic Top]

In those cases where there was great power disparity, how did it affect your job? How did you deal with such disparity with the power in the prison system? You think prisoners don't have any rights, basically? The prison system is telling them and society tells them that they don't have any rights.

Answer:
First thing you understand is that there are limitations. No matter what you do, you're not going to get around that. You learn that you don't go around telling anybody what you are going to do, especially in prisons. There's hostility enough as it is, and hostility runs out just by the warden saying, "I'll show you who's in charge. You may come in here and be the civil rights person, but I run this prison." Understanding that, you try to sit down with the warden and determine as to whether or not you can get some nice things going like soap, showers at certain times and some of the minimums.

Question:
So by asking for a compromise from the majority group, was that your way of leveling the playing field and sort of reducing the disparity in the power?

Answer:
No. We didn't deal with the issue of disparity in the power. I knew that they were convicted criminals, and committed murderers. I'm said, "We are going to work on this and see if we can get some favors for them."

Question:
What about a less extreme place where you've got a racial minority group, perhaps the case we were talking about originally.

Answer:
That's different, and so you act differently.

Question:
Do you try to do anything to build capacity in the low power group or empower the low power group?

Answer:
Yes. Well you don't really go in trying to empower a particular group. You may unwittingly go in and say, "Hey, look, this is what's going on and here's a way that you can be better off," if that's perceived as empowering. You want to teach and you want to provide knowledge if you can. So in some instances, that would be empowering. You have to remember that some prisons are not going to allow you in there -- especially Federal prisons because they're on the same level that you are, the Department of Justice. If they don't want to see you in their prison, they're not going to let you in there. Other times, I wasn't allowed into Bureau prisons.

Question:
So when you did empowerment on various levels, how was your work affected by issues of neutrality, impartiality, and objectivity? Were those things that were at the forefront when you did this?

Answer:
Let me just stop you right there by saying, number one, you use the wrong word. Really, we didn't go around and try to empower anybody. We were out to try to mediate and hopefully come up with strategies that would speak to certain issues that would, in turn, provide the tools for people to become empowered themselves. We might also try to have the officialdom at hand to work with them and work together with the community or the group that was having a problem to the point where there could be some empowerment. As far as us sitting down and saying, "We're going to place this power in you hands," we don't do that.




Dick Salem


 [Full Interview] [Topic Top]

I had no idea. I just knew nobody told us about it. AIM leader Vern Bellancourt told us "We want someone from CRS to stay down here tonight. We don’t trust them. They’re going to fire in and we want a couple of whites in here." They believed the government would be less inclined to fire into Wounded Knee if whites from the government were there. So we assured them that would happen, and I made plans to spend the night there with Burt Greenspan, a young white conciliator. Doug Hall was there that night, a civil rights lawyer from Minneapolis, who was providing legal counsel to AIM.



Nancy Ferrell


 [Full Interview] [Topic Top]

Answer:
Yeah, one of the things that made it work could have been more difficult if the Vice President for Student Affairs was not so committed to what we were trying to do. He didn't know exactly what to do, but he was in, he was there all the way. Once we sold the President and he bought into it, he was free then to do what he wanted to do, and knew it was the right thing to do, but he knew he couldn't do that without support. So, it really made that part of it easy. Again, the next hurdle was the faculty and the faculty's perception of potentially losing some power or influence. But they did come around and there was faculty representation from the general faculty and also from minority groups within the faculty on the task force.

Question:
Now how did you bring them around?

Answer:
Which, the faculty? I met with their whole group. I talked about our process. There's always the unknown and they wonder, "What's the person from Federal Government doing here?” But I have to project, "I'm not going to undermine this institution, I'm not going to undermine the faculty, nothing is going to be diminished if we rise to this and cause something better to come from it.” If it doesn't work then we'll refer it to someone else, and again if the group doesn't rise to that, you can always refer it to somebody who can enforce something. You're giving people an opportunity to rise to a higher level and when they see that and they trust that you can take them there, most of the time people will go with you. Now here's the thing that I was beginning to sense the last 3 or 4 years I was doing this work with Justice. Of the people who did not want to rise to that -- or as I just described it, didn't want to come to the table in good faith, there were two different profiles. One was coming from the establishment perspective, saying, "My influence is going to be diminished if this process is put in place because when a broader base of people is in power then individual power is diminished,” if it's an authoritarian kind of power. So, those people are intimidated and threatened by what we do. There were minority people whose power was based in the fight, and if the group begins to rise to a higher level with everyone really working toward the best interest of everyone else, those individual powers will be diminished and they would try to sever ties. So, that became an interesting phenomenon to me in the last 3 or 4 years, seeing that as more and more mediation or conflict resolution or consensus-building or multi-culturalism became a part of the fiber. These individuals began to say, "I'm losing control, I'm losing influence, I'm losing power," and there began to be a push to keep the thing from working. My response to that was usually to go with the group, whatever group they were a part of, and talk about that in private and say without naming any names that there seems to be some sabotage going on. "Can you help with that? Are you interested in helping with that? Because either that person's going to pull the group away or the group will have to move away from that person.” But, I never tried to engage those people. I would try to bring them to the table, I tried to get them in the midst of it and hold them to their higher words.




Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
We talked yesterday about the theory we developed, based on talks with a lot of people, about what we call intractable or resolution-resistant conflicts. We came to the conclusion that conflicts were more resolution resistant if they involved very high stakes and distributional kinds of questions. They were also more resistant if they involved fundamental moral differences, or what we call domination conflicts, pecking order conflicts, or identity conflicts. All of these tend to be involved in race issues. I threw this out at you yesterday, and you said that the factor we hadn't been thinking about was the need for relationship. If there was a need for relationship between people, then they would be willing to negotiate on those things. Are there other factors we're not thinking about?

Answer:
Another factor is the party’s or the individual's ability to look beyond their current power position. If they can't perceive themselves in an honorable way, beyond this entrenched position, then the issue's not negotiable. That's why I always ask, "What is in your interest?" If I can't help them identify an interest that serves their needs beyond this entrenched position, it won't work. I can explain to them, "You have the power to direct authoritarian decision making on this plan, but what is it getting you? What might happen if you're willing to move in a different direction? Is it worth that?" If they say it's not worth that, then I'll tell these people what to do. If they don't do that, they're out of here, they're not going to negotiate. Again, at that point, I'm not looking for them to understand the other party's interest. I'm looking for something to catch their interest. So if they're so entrenched that they can't see hope of personal interest served -- beyond this entrenched position -- they're not going to move out of it. That's when I would say, "Call me."

Question:
You mean if they change their mind?

Answer:
Yes. I think one of my propensities was to keep moving beyond their real interest. They would have to be really overt to me and say, "Go away." As long as they just danced around it and kept the door open, I just kept moving forward. Generally that worked out, although sometimes they slammed the door. I think that's one of the skills of the mediator, to understand whether or not it's mediatable. If you can’t help that party see beyond the entrenched position, then it's not going to be mediated. I use it in the 40 hour mediation class. For example, one of the barriers may be authority. It's a big rock. Here's the mediator, they're the fulcrum underneath this lever. As the mediator, I'm trying to get this party off of its entrenched position in order to see the benefits of the mediation. If I can't come up with something to put on the other side, then it won't level out and it's not going to work.

Answer:
So the mediator is looking for a leverage point to move people out of their entrenched position, to get them to consider a negotiation. In family situations, children are often the point. Sometimes it's money. "How many resources are you going to use supporting that intrenched position? Are you willing to consider another option?" So you've got to find that leverage point. If you can't find it, and I don't say many things absolutely, but that's where you would have an intractable conflict. If they had found that point already, they wouldn't be there. So, all your incredible skills have to involve helping find that leverage point. It's either going to be a common interest or a personal interest. A common interest gives you the possibility of a richer mediation. A personal interest can at least get you to the table and create some sort of contractual relationship to the conflict. If you can get them toward a common interest, that's where the payoff is. That's when I try and transform those relationships by the process. But sometimes the best you can do, because of personal interest, is to get to some contractual relationship. It's better than nothing. Abortion is another example I use. With the abortion issue, there is no common leverage for either side to move off that intrenched position. You're wasting your time. The best you can do is work with the majority of people who are in the middle and try to bring reason to the extremes. That's what has happened in these big international affairs, like Kosovo. They don't have a middle. In Ireland, there's become this middle group who says these intrenched positions are killing us. That's where you need to start focusing your energy, is in that middle group, in helping and nurturing and supporting. Then the light's on, and these two intrenched positions are no longer acceptable and the community often has to move on beyond them. They'll still be agitating back here, but the group as a whole has been able to create some life to move forward.






Leo Cardenas


 [Full Interview] [Topic Top]

One of the things we've been talking about a lot with other people are power disparities between the minority community and the majority community and how CRS helps the minority community build up power. Did you do that in this case?

Answer:
We call it balancing the table so that the table is even and there is recognition about the power and the stature of the parties. Up until then, there was no such recognition. The organizations, individually, did have a lot of history, but collectively, the groups had never come together. I don't believe they had never thought that there might be strength in coming together on this particular issue.

Question:
The key thing that gave them power was bringing them together?

Answer:
Yes. The CRS conciliators spent a lot of time coalescing the community groups. But they did a tremendous job.




Will Reed


 [Full Interview] [Topic Top]

So the criteria that you used was whether or not the people across the table were of equal power?

Answer:
That was part of it. But also I didn't trust him not to burn these kids. And this is where my prejudice came out, because I knew, or I felt, that they were going to get burned if they came across as being equal. Some people are unequal no matter what happens, and if you understand that, then you can structure things around it to some extent. But I didn't think I could do that in this case.













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